Lawsuits chase popular almond milk, part of national trend in food labeling claims

Virginia Shanahan, left, Stephanie Gomez, right, and Francis Mankin, second from right, sort almonds along with other workers at Blue Diamond Almonds in Sacramento on November 30, 2011.
Lezlie Sterling
lsterling@sacbee.com

Virginia Shanahan, left, Stephanie Gomez, right, and Francis Mankin, second from right, sort almonds along with other workers at Blue Diamond Almonds in Sacramento on November 30, 2011.
Lezlie Sterling
lsterling@sacbee.com

And then there’s almond milk, which is rapidly slurping up a bigger share of the American market. Now, the popular nondairy beverage is also being targeted by class-action attorneys, part of a larger wave of food-related lawsuits, many of which are originating in California.

In recent months, several lawsuits seeking class-action status have been filed against Sacramento-based Blue Diamond and WhiteWave Foods in Denver, alleging false advertising and deceptive marketing of their almond milk products.

The lawsuits, one filed in San Jose and two others in New York, contend that the companies’ products – Almond Breeze and Silk brands, respectively – are harming consumers by claiming to be “all natural” or made “mainly from almonds,” when they contain additives, sweeteners and only a small percentage of almonds.

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The lawsuits, filed on behalf of consumers who purchased almond milk starting in either 2008 or 2009, each seek at least $5 million in damages, plus court costs.

Contrary to their packaging, almond milks “are not primarily made from almonds,” according to the lawsuit filed by New York attorney James Kelly on behalf of two clients, including a Los Angeles woman, Tracy Albert. Instead, the suit says, a carton of almond milk contains various thickening agents, such as locust bean gum, xanthan gum and carrageenan, and only 2 percent almonds.

“It is about fair advertising and fair disclosure,” Kelly said in an email. “Plaintiffs have purchased these products because they relied on health claims and they paid a premium for the product because they believed it contained a significant amount of almonds. Defendants are making huge profits by falsely advertising to create higher demand.”

Blue Diamond spokeswoman Alicia Rockwell said the Sacramento-based company cannot comment on pending litigation, but said via email: “Almond Breeze is made from an average of over 50 almonds per half gallon. The balance of our recipe is water and other quality ingredients.”

Rockwell noted that water is the most common and highest-volume ingredient in other popular beverages, including coffee, tea, soda, juice and sports drinks. Regular cow’s milk, she said, is 85 percent to 95 percent water – the same as most soy and almond milk, “which is why our brand is not alone in responding to recent lawsuit claims.”

The exact formula for Almond Breeze is proprietary, Rockwell added, but all ingredients and nutritional information are listed on each carton’s label.

Both companies are removing one additive – carrageenan – from their almond milks. Carrageenan, derived from red seaweed, is used in the food industry as a thickener and stabilizer.

Almond milk beating rivals

The lawsuits come as almond milk is swallowing a bigger share of Americans’ milk-buying budget. It appeals to a growing number of consumers who are calorie conscious, lactose intolerant or seeking a plant-based alternative to cow’s milk.

“The single biggest market trend in the dairy and dairy alternative beverages market has been the strong growth in the almond milk segment,” which expanded by 40 percent in dollar sales between 2013 and 2014, according to the most recent report from Packaged Foods, a Rockville, Md.-based market research firm that tracks dairy and nondairy beverage sales. While regular milk still maintains 80 percent of the overall market, almond milk alone is swallowing an increasingly bigger share, projected to grow from 5 percent currently to 19 percent by 2019.

“Almond milk has grown not only at the expense of dairy milk but also apparently at the expense of soy milk, taking away share from what for many years had been the mainstay of the dairy alternative beverages category,” according to the Packaged Facts report.

Those “plant-based dairy alternatives,” especially almond milk, “show no signs of slowing” and newer alternatives, such as coconut and cashew milks, “are expected to drive the alternative segment even faster and higher over the next several years,” the report said.

The surge in almond and soy milk sales accompanies a decades-long slump in Americans’ consumption of regular milk. Even sales of low-fat and 2 percent are dropping.

“It all gets down to a decision at the refrigerator or dairy case,” said Steve James, executive director of the California Milk Processor Board, which created the “Got Milk?” marketing campaign in 1993 to try and stem drooping sales.

The four-decade decline in consumption of fluid milk, he said, is rooted in people’s changing habits (grab-and-go breakfast foods and fewer sit-down family meals), as well as a more crowded field of milk alternatives.

More than 20 years ago, “we thought it was dire, and our only competitors were carbonated soft drinks and orange juice. If you look at any convenience store these days, there is increased competition for ‘share of stomach’ among consumers,” James said.

Frivolous lawsuits?

Lawsuits against food manufacturers are an emerging trend, according to “The New Lawsuit Ecosystem,” an October 2013 report by the U.S. Chamber Institute for Legal Reform in Washington, D.C.

Since 2011, it said, a small group of plaintiffs’ lawyers has filed nearly 150 class-action lawsuits against food-makers, with more than half filed in California courts. “Some law firms reuse the same people over and over as plaintiffs, attack advertising that the plaintiff never saw or relied on, and even challenge the marketing of products that the plaintiff never bought,” the report noted.

“There’s been a large rise in these cases about food and food labels … cases about tea, cereal, snack foods and other packaged, processed foods and whether their labels are telling the whole story,” said Diana Winters, an Indiana University law professor who’s doing food law research at UCLA.

She said some lawsuits are obviously frivolous and have been tossed out by courts, such as a Northern California woman who filed a lawsuit in 2009 claiming damages because Cap’n Crunch’s Crunch Berries cereal didn’t actually contain real fruit.

In another case in 2013, a Northern California judge dismissed a proposed class-action lawsuit claiming that manufacturers of almond milk, coconut milk and soy milk had deceptively misnamed their products because they don’t actually come from cows.

In his order, U.S. District Judge Samuel Conti said that the claim “stretches the bounds of credulity.”

“It is simply implausible that a reasonable consumer would mistake a product like soy milk or almond milk with dairy milk from a cow,” Conti said. Under the lawsuit’s logic, he wrote, a reasonable consumer might also believe “that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.”

Winters said the increase in food-labeling lawsuits could be due to several competing factors. On the one hand, there’s increased consumer awareness of how food ingredients affect health. And some believe some plaintiff lawyers are pursuing big payouts from large food manufacturers.

Kelly, the New York-based attorney whose suits seek class-action status against Blue Diamond, dismissed the notion that his claims are frivolous.

“That can be said of any lawsuit,” he said by email. “Why is it so hard to put on the label that there are only 2 percent almonds,” he asked, “but so easy to put pictorials of numerous almonds on the label?”